By Ford Marrin Esposito Witmeyer & Gleser, L.L.P.
New York, New York

We start with the federal Communications Decency Act of 1996,
a controversial piece of legislation signed into law by President Clinton
on February 8, 1996, and now under legal challenge by the American Civil
Liberties Union and others. The Communications Decency Act bans the communication
of "obscene or indecent" material via the Internet to anyone under 18 years
of age. (Telecommunications Act of 1996, Section 502, 47 U.S.C. Section
223[a].)

We all know that this new law resulted from a complex meshing
of political forces in an election year during which family values will
continue widely to be extolled. But, is this part of the new federal law
legal? All of us have heard of the First Amendment to the United States
Constitution. It states in pertinent part that "Congress shall make no
law. . . abridging the freedom of speech . . . ." If those words are to
be read literally, then the knee-jerk answer would be that this new law
is illegal. But, the First Amendment, while historically read fairly broadly,
has never been interpreted literally. Even Thomas Jefferson, when he served
as President, tried to prosecute conduct that he viewed as seditious speech.
The U.S. Supreme Court also consistently has ruled that pornography and
obscenity fall outside the First Amendment, along with a variety of other
seeming "speech."

At the same time, adult conduct which includes sexually oriented
conduct that some (perhaps even arguably a majority) might consider immoral
has been considered protected by the First Amendment when it takes place
in a private setting. Perhaps the outmost reach of that theory of constitutional
"privacy" manifested itself in "Roe v. Wade" and the right to an abortion
(itself now a controversial proposition). Surely, though, it can be said,
Internet surfers who find "indecent" material (whatever that is) as a result
of their inquiries from home (or the office) fall well within the outer
reach that Roe demarcated? Or is that true?

Then, we come to the question of "children," the stated objective
of the new Congressional ban. Anyone who watches the news or reads newspapers
knows that the courts frequently hold that government can legitimately
try to protect the well-being of children. At the same time, how parents
rear their children has generally been left to the parents, although perhaps
because of publicized parental lapses more governmental activism seems
to exist in that arena too. But it seems fair to say that few parents,
irrespective of their political or religious views, would agree that the
federal government should intercede in how they raise their own children.
In general, parents have access to a wider variety of Internet access controls
than controls over cable television or the movies. Additionally, most children
who live in environments in which their parents lack access to Internet
protection likely also lack the resources to acquire computer technology
and Internet access. Is Congress intruding into the parental sphere in
banning "indecent" Internet communications?

Proceeding further, the courts have generally given the federal
government wide latitude to control what can be said or shown over the
commercial television "airways." We have all probably heard of the FCC's
ban of "indecent" speech and the "seven dirty words" of George Carlin or
the antics of Howard Stern. But, the commercial television airwaves flow
almost inexorably into everyone's home, with little more effort than the
flick of a dial. The Internet is something that most of us must buy access
to and which we then choose to surf on our own. And does the government
really have the right to tell parents what books and magazines they can
let their children read at home or what television programs or motion pictures
they should let their children watch?

If the answer is, "yes," then how much stretching does it take to extend
government control so as to encompass notions of social or philosophical
or religious tutelage?

A complex legal and societal problem indeed! To recap, if the
Internet is akin to commercial network television and if the government
can constitutionally restrict the menu of offerings there, then why not
the Internet? But, the Internet is different, in lots of ways. And, what
does "indecent" mean anyway? "Pornography" and "obscenity" are difficult
enough concepts in their own right. Justice Potter Stewart of the United
States Supreme Court wrote in 1964: "perhaps I could never succeed in intelligibly"
explaining what it is. "But I know it when I see it".

"Indecent," whatever that means (Congress itself did not define
the term) must surely be something less offensive than "obscenity." Isit
just, fair or even wise to penalize someone from making available information
which some would label "indecent" but which few of us can even define?

We we first published this article, we explained that: "These
are among the issues that the courts must decide in ruling on the legality
of the Communications Decency Act of 1996. Only time will tell the outcome.
At least, though, the courts are not quite as immediately influenced by
current political trends as legislators and their final decisions may be
less emotionally passionate and more deliberative."

On June 26, 1997, the United States Supreme Court declared the Communications
Decency Act's ban on "indecent" Internet speech unconstitutional. Although
the Court appreciated the law's purpose of protecting children from indecent
material, it ruled that "[t]he interest in encouraging freedom of expression
in a democratic society outweighs any theoretical but unproved benefit
of censorship." In a separate opinion Justice O'Connor, joined by Chief
Justice Rehnquist, compared the Act, which made it a crime to use a computer
to transmit or display indecent material in a manner available to a person
under 18, to a law "that makes it a crime for a bookstore owner to sell
pornographic magazines to anyone once a minor enters his store." "Content
on the Internet is as diverse as human thought," noted Justice Stevens
in the Court's main opinion, holding that the overbreadth of the Communications
Decency Act threatened to stifle constitutionally protected speech. The
Supreme Court, in its ruling, has helped to ensure that such diversity
will continue to blossom and that, as the Internet continues to grow, our
freedom of speech will not atrophy in response in the United States.

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